Total Metrology LLC Terms and Conditions

In the absence of an executed agreement between parties, the following Terms and Conditions will apply.

All sales of product development services, CMM programming, CMM inspection, and other consulting services by Total Metrology LLC (collectively referred to herein as “Services”) are subject to the following Terms and Conditions. All proposals or quotations issued by Total Metrology LLC are an offer to sell Services pursuant to these Terms and Conditions. Total Metrology LLC objects to any additional or different terms contained in any documentation submitted by Customer. No waiver or modification of these Terms and Conditions shall be binding on Total Metrology LLC unless authorized in writing by Total Metrology LLC. Total Metrology LLC’s acceptance of any order is contingent upon the receipt of the required down payment, a valid purchase order, and/or signed proposal from the Customer.

1. SCOPE OF WORK. The scope of work for the Services to be provided to Customer is specifically set forth in the Proposal, Quote, or Acknowledgment submitted to Customer by Total Metrology LLC. If Customer requests a change in the scope of the Services to be provided, Total Metrology LLC reserves the right to revise delivery schedules and make an equitable adjustment to the price. Total Metrology LLC will not be obligated to provide any services which are (a) outside of the scope defined in the applicable documentation; (b) outside its area of expertise; or (c) in violation of any applicable laws, codes or regulations.
2. PRICES AND TAXES. Prices for the Services are subject to escalation in the event of an increase in costs associated with the project. Unless otherwise stated or agreed, Total Metrology LLC’s prices do not include sales, use, or similar taxes.
3. LIMITED WARRANTY. Total Metrology LLC will provide the Services in accordance with generally accepted professional practices using reasonable care and skill consistent with that ordinarily exercised by members of the profession under similar conditions. However, due to the nature of the Services being provided, Total Metrology LLC cannot fully guarantee the success of Customer’s project. As such, except as set forth in this Section, Total Metrology LLC makes no warranties or guarantees, whether express, implied, or statutory, regarding or relating to the Services provided. Total Metrology LLC specifically disclaims all implied warranties of merchantability and fitness for a particular purpose with respect to the Services.
4. PAYMENTS. Payment shall be made in U.S. dollars. Any payments received shall be applied, regardless of invoice number, first to any late fees outstanding and then to any outstanding principal balance or other fees at Consultant’s sole discretion.
5. PAYMENT TERMS. Standard Payment Terms if not explicitly stated in each Proposal is 50% of estimated costs due at time of booking with the remaining costs due NET 15 after completion of the work.
6. LATE FEES. Payment not received on or before due date shall bear interest at the rate of 5% monthly from its due date until paid in full. If Total Metrology LLC requires use of a collection agency to obtain payments from Customer, then Customer is responsible for paying all costs incurred for collection agency services.
7. WARRANTY DISCLAIMER. Total Metrology LLC covenants and agrees that Total Metrology LLC shall provide its Customers with Work of consistent quality compliant with all applicable federal, state, and local laws and regulations and in conformance with all applicable industry standards. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TOTAL METROLOGY LLC MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE work products, deliverables, and intellectual property that ARE created or developed by Total Metrology LLC during the course of work on the Projects, THEIR MERCHANTABILITY, OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
8. SUSPENSION. Total Metrology LLC reserves the right to suspend all Work for the Customer without notice if Customer is 7 days or more past due on any payment. Customer acknowledges that if any such work suspension/stoppage occurs, Total Metrology LLC may not be able to restart any Work immediately upon restoration of Customer’s account balance to good standing and that the forecasted schedule(s) for Work so interrupted will be adversely affected, potentially on a greater basis than the number of days that the suspension/stoppage was in place.
9. CANCELLATION OF PROJECT BY CUSTOMER. Customer shall have the right to cancel any Project or Purchase Order prior to its completion. In order to affect such cancellation, in addition to giving Total Metrology LLC written notice of such Project or Purchase Order cancellation, Customer shall pay for the percentage or work that has been completed as of the date of cancellation. Any submitted down payment value greater than the cost due by Customer upon cancellation will be refunded by Total Metrology LLC to Customer within 30 days.
10. CANCELLATION OF PROJECT BY TOTAL METROLOGY LLC. Total Metrology LLC shall have the right to cancel any Project prior to its completion. In order to affect such cancellation, Total Metrology LLC must provide written notice of such Project cancellation to Customer. Upon cancellation of a Project by Total Metrology LLC, Customer shall pay for the percentage or work that has been completed as of the date of cancellation. Any portion of the work that has been completed for the Project will be provided to Customer, but only after payment for this work has been made.
11. TERMINATION FOR CAUSE. Either party may terminate Agreement(s) prior to the Expiration Date by giving written notice at least 5 days before the effective termination date (the “Effective Termination Date”) to the other party if:
    1. the non-terminating party makes a general assignment for the benefit of creditors;
    2. a petition in bankruptcy or under any insolvency, receivership or liquidation law is filed by or against the non-terminating party and such petition is not dismissed within 30 days after it has been filed; or
    3. the non-terminating party breaches a material provision of this Agreement and such breach is not cured within 10 days after written notice thereof is sent to the breaching party.
12. EFFECT OF TERMINATION. Within 15 days of the notice of termination, Customer will pay Total Metrology LLC for all Work performed through the Effective Date of Termination. Customer’s payment obligations to Total Metrology LLC include any non-refundable expenditure commitments made by Total Metrology LLC prior to the Effective Date of Termination.
13. DELIVERY/FORCE MAJUERE. Total Metrology LLC shall have no liability for delays or any other breach of its obligations resulting from an Act of God, war, riot, explosion, accident, act of government, work stoppage, default of subcontractor or supplier of materials, or any other cause beyond the reasonable control of Total Metrology LLC.
14. NO-HIRE AGREEMENT. Customer agrees that, during the term of the Services performed and for a period of one (1) year immediately following, Customer will not directly or indirectly recruit or solicit to terminate, offer employment to, induce, recruit or hire any employee, contractor or Total Metrology LLC of Total Metrology LLC, for any reason.
    1. If at any time during the term of this agreement or during the twelve (12) month period following termination or expiration of this agreement, the Customer directly or indirectly hires or otherwise engages an Total Metrology LLC Employee or Associate (other than through Total Metrology LLC), then within thirty (30) days after the start of such hiring/engagement the Customer agrees to pay Total Metrology LLC a one-time fee equal to thirty-three percent (33%) of the greater of (i) the Total Metrology LLC Employee or Associate’s annual salary, or (ii) the Total Metrology LLC Employee or Associate’s annualized compensation for the first year of service calculated based upon their first month’s service to the Customer, in either case regardless of whether the Total Metrology LLC Employee or Associate remains employed/engaged by Customer for an entire year. Additionally, such fee shall automatically be adjusted upward one year after such engagement if the Total Metrology LLC Employee or Associate’s actual first year compensation (including bonus, etc.) exceeds the amount pursuant to the prior sentence, and such excess shall be due within thirty (30) days after such one year anniversary.
15. COOPERATION. The Customer shall provide such access to its information and property as may be reasonably required in order to permit Total Metrology LLC to perform its obligations hereunder. Customer acknowledges that any delays in Customer’s response to Total Metrology LLC’s request for information, property, consent or otherwise may result in a delay in Total Metrology LLC’s performance and Total Metrology LLC’s ability to perform under any forecasted delivery schedule.
16. INDEPENDENT PARTIES. It is the express intention of the parties to this Agreement that Total Metrology LLC is an independent contractor, and is classified by the Customer as such for all purposes, including, but not limited to employee benefit purposes, and is not an employee of, agent for, joint venture with, partner of, master/servant with or any other special relationship with the Customer. Both parties understand and agree that the Total Metrology LLC may perform services for others during the term of this Agreement. Total Metrology LLC shall have no authority to assume, create, or enlarge any obligation or commitment on behalf of the Customer without the prior written consent of the Customer.
17. INTELLECTUAL PROPERTY.
    1. For purposes of this Agreement, “Intellectual Property”means (a) inventions of any kind (whether patentable or not, and whether or not reduced to practice), all improvements thereto and all patents, patent applications and patent disclosures (whether or not filed), together with all reissuances, divisionals, continuations, continuations-in-part, substitutes, extensions and re-examinations thereof, as well as any foreign counterparts of any of the foregoing; (b) all copyrightable works and materials and all copyrights including all applications, registrations and renewals thereof; (c) ideas expressed in any tangible or electronic medium of expression; (d) trade secrets, proprietary formulations, know-how, show-how, research and development results, projections, analyses, models and other technical information and technology; (e) technical data; (f) computer software; (g) technical know-how; (h) trademarks and servicemarks, both registered and unregistered, as well as all applications, registrations and renewals thereof; (i) any other legally recognized form of intellectual property; and (j) all rights in or to the foregoing.
       1. Until Customer has fully paid all open invoices, Total Metrology LLC shall retain the exclusive rights and title to the defined work products, deliverables, and intellectual property that have been created or developed by Total Metrology LLC during the course of work during the unpaid invoicing period(s).
       2. Total Metrology LLC and Customer agrees that all Intellectual Property created, invented or developed by Total Metrology LLC or by Total Metrology LLC jointly with Customer, which is related in any way to any products developed or work done by Total Metrology LLC under this Agreement, shall be the joint property of Customer and Total Metrology LLC. However, Total Metrology LLC shall not use or provide said intellectual property to others to develop products that compete with the Customer’s products.
18. LIMITATION OF LIABILITIES. EXCEPT AS PROVIDED UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) NEITHER PARTY’S LIABILITY, WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO WORK PERFORMED HEREUNDER, SHALL EXCEED THE LESSER OF (a) THE AMOUNT PAID BY CUSTOMER HEREUNDER FOR WORK PERFORMED DIRECTLY IN RELATION TO INCIDENT WITHIN THE 12 MONTHS PRECEDING THE INCIDENT OR (b) $10,000.00, AND IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED AN AMOUNT EQUAL TO $20,000.
19. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
20. INDEMNIFICATION. If either Party uses, incorporates or otherwise interacts with third-party software, hardware, device, or other item (“Third Party Product”) or provides such Third Party Product for use, incorporation or other interaction into a Project, the providing Party represents and warrants to the other Party it has all rights associated with such use, incorporation, modification, world-wide sale and distribution, or other interaction of/with the Third Party Product, including any use, incorporation or other interaction by either Party. The providing Party shall defend the other Party against any claim, demand, suit or proceeding made or brought against the other Party by a third party alleging any infringement or misappropriation of the intellectual property rights of a third party or a violation of any applicable law (a “Claim Against Other Party”). The providing Party shall indemnify the other Party for any costs related to the defense against such claim, including, but not limited to, damages, attorney fees and costs finally awarded against the other Party as a result of, or for any amounts paid by the other Party under a court-approved settlement of, a Claim Against Other Party, as well as other Party’s internal expenses related to such action.
21. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Florida without regard to the principles of conflict of law thereof. The parties agree that any litigation or other dispute resolution relating to this Agreement in any way shall take place exclusively in Brevard County, Florida. Both parties hereby consent and irremovably waive all objections to the personal jurisdiction of, and the exclusive venue in, the state courts in or governing Brevard County, Florida for the resolution of any dispute between the parties related to this Agreement.